BBC's Joshua Rozenberg"It was a horrific case and it produced a historic ruling" real 28k

Thursday, 16 December, 1999, 13:57 GMT
Q&A: The Bulger case

The European Court of Human Rights has ruled that the killers of toddler James Bulger did not receive a fair trial and that it is not up to the Home Secretary to set a tariff - or minimum punishment period - for Jon Venables and Robert Thompson.

The BBC's legal correspondent, Joshua Rozenberg, examines some of the legal questions still surrounding this case.

What were the legal arguments which led the European Court of Human Rights to its decision?

The Human Rights Convention guarantees a fair hearing before an independent and impartial tribunal.

Lawyers for the two boys said that they did not get a fair hearing because their case was heard in an adult court and it wasn't an independent and impartial tribunal because the minimum period of punishment, what's called the tariff, was set by the Home Secretary who is clearly not independent of the government.

Could the verdict be overturned?

Jon Venables' lawyer told the BBC that it might be technically possible to go back to the Court of Appeal in London and ask for the verdict to be set aside in the light of the fact that they had not been given a fair trial.

But Jon Venables and his parents decided not to seek this. However, as far as the minimium punishment period is concerned , Jon Venables and Robert Thomspon will be taking steps to have the matter referred to the parole board. They hope this will mean that they will be detained for less than the 15 years set by the former Home Secretary, Michael Howard.

Are these two youths likely to be set free in the near future?

They are not likely to go free in the near future. On the other hand, they are not likely to stay in detention for as long as the 15 years set by Michael Howard. They have served six years since they were convicted plus a further few months waiting for trial.

Will children who have committed serious crimes still be tried in adult courts?

No. Not in the full blaze of publicity. Some sort of procedure will be applied to children who are tried for less serious crimes, like the youth court, where the hearing is in private.

It is before specially trained magistrates, no jury is involved, the proceedings are much less formal and the lawyers don't wear wigs and gowns.

If you did have children tried in a Crown Court, it would have to be with very special arrangements to limit publicity and public access to the trial. This would make it more possible for children to talk to their lawyers calmly, have a fair trial and to participate in the legal process.

Did the European Court of Human Rights refer to any legal precedents?

One of the consequences is the ruling that the home secretary should no longer decide the minimum period of punishment. The judges quoted a case from the House of Lords, an English case, which decided that the tariff-setting process was part of court procedures.

They also drew on their own past cases. The European Convention of Human Rights has been in existence for more than 50 years and over that time the court has developed a substantial amount of case law.

Does the Home Office have to comply with this ruling?

The Home Office has to comply with the rulings with the European Court of Human Rights. However, it does not need to go any further than the court says it must.